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Tuesday, December 3, 2013

Is “Hobby Lobby” About Crafts or Craftiness?

Why did the Pilgrims come to this country in the 17th century?  Why did the Puritans also make the arduous journey?  How about the Huguenots? 
They all came, as others still come, because of the fact that they were seen as dissidents in their native countries, worshipping illegally outside state-established structures and rituals.  In their background was the Protestant Reformation which split Europe along Catholic and Protestant lines, and which spawned a variety of groups who often suffered persecution for their beliefs and practices from both civil and religious authorities. reminds us that “This persecution varied widely from country to country, both in form and in the degree of severity. In some places, members of minority faiths resented paying taxes to support the established church and being forced to attend worship services; in other places, refusing to conform to the local religion meant death.”

While the New World offered an opportunity to worship without interference, some of the new religious communities denied that freedom to others because their beliefs and practices were different.  For example, New England Puritans banished, punished, and sometimes executed Quakers and other non-Puritans.    Banished from Puritan Massachusetts, Roger Williams founded Rhode Island in 1636 where he put into practice the concept that everyone should be free to worship according to his own conscience.  The new colony quickly became a haven for Quakers, Jews, and other "dissenters."

Just why do I mention this?  Because very soon the Supreme Court is going to be deciding a case that involves so-called “religious liberty.” That is, it will decide whether a company called “Hobby Lobby,” because its owners believe that contraception is against the will of God, has the ability to refuse to provide health care insurance plans that provide free contraceptives to its employees.  Because the Affordable Care Act (ACA) mandates that all health care plans shall provide free contraceptives, the company owners claim they must deny a tenet of their faith, and that the government is denying their right to religious freedom guaranteed by the First Amendment to the Constitution.
In my humble opinion, this is equivalent to one sect denying another their rights.  That is, if the Court finds in favor of the complainant, then the religious beliefs or practices of a sizable portion of the employees have been totally compromised.  This is what happens when specific religious beliefs or practices are allowed into the political arena to become determiners of public policy.  And, this is why the first amendment says what is so often overlooked.  PBS continues its narrative:
“In Europe, the Reformation led to a series of deadly and devastating wars of religion that brought even more refugees, like the Huguenots, to the colonies. The suffering caused by these European conflicts, as well as the intellectual advances of the 18th-century Enlightenment, led the founders of the United States to make freedom to worship the law of the land in the First Amendment to the Constitution: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof" [in other words, there would be no state-supported church, as in Britain]... And although the majority of Americans—then and now—profess Christianity, the new nation confirmed separation of church and state in a 1797 treaty with the Muslim state of Tripoli in North Africa, which stated, "The government of the United States is not, in any sense, founded on the Christian religion."

Several points need to be made here:
1)    The banning of legislation that would support establishment of a particular religion, seen as the primary clause in this amendment, and known as “the establishment clause,” is the portion most often overlooked.  This is the crux of the “religious freedom” that was being sought both by the early arrivals on these shores, and by the Founding Fathers.  The establishment of a state-approved and state-supported religion was the source of most of the punishments, harassments, exile and worse for those who fled here to escape.  It was also the basis of what the Enlightenment was teaching some of the Founders. 
2)    The second clause is suspiciously vague and more open-ended.  What it says, if you use the opening subject to make it clear is this:  “Congress shall make no law…prohibiting the free exercise thereof (of religion).”  The subject once again is the state (Congress) and its law-making power.  The writer appears to want to insure that Congress will not pass laws that limit religious entities in their religious practices.
3)    “Free exercise of religion” is problematic in terms of interpretation. The exercise of religion was probably defined somewhat differently in the late 18th century than it is in today’s expanded understanding and definition, and so we summarize some thoughts set forth by Wikipedia on Enlightenment thinking.

The Age of Enlightenment (or simply the Enlightenment or Age of Reason) was a cultural movement of intellectuals beginning in the late 17th- and 18th-century Europe emphasizing reason and individualism rather than tradition. Its purpose was to reform society using reason, challenge ideas grounded in tradition and faith, and advance knowledge through the scientific method. Originating about 1650 to 1700, it was sparked by philosophers Baruch Spinoza (1632–1677), John Locke (1632–1704), Pierre Bayle (1647–1706), Voltaire (1694–1778) and physicist Isaac Newton (1643–1727).

From Immanuel Kant's 1784 essay ‘Answering the Question: What is Enlightenment?’ comes the thought that “Enlightenment was mankind's final coming of age, the emancipation of the human consciousness from an immature state of ignorance." Bertrand Russell argues that many of the philosophical views, such as affinity for democracy against monarchy, originated among Protestants in the early 16th century to justify their desire to break away from the Pope and the Catholic Church.  Historian Jonathan Israel argues that until the 1650s Western civilization "was based on a largely shared core of faith, tradition and authority".  Up until this date most intellectual debates revolved around "confessional" issues - that is Catholic, Lutheran, Reformed (Calvinist), or Anglican issues - and the main aim of these debates was to establish which bloc of faith ought to have the "monopoly of truth and a God-given title to authority".  After this date everything previously rooted in tradition was questioned and often replaced by new concepts in the light of philosophical reason.

After the second half of the 17th century and during the 18th century a "general process of rationalization and secularization set in which rapidly overthrew theology's age-old hegemony in the world of study".
This period saw the shaping of two distinct lines of enlightenment thought:  (1) the radical enlightenment, largely inspired by the one-substance philosophy of Spinoza, which in its political form adhered to: "democracy; racial and sexual equality; individual liberty of lifestyle; full freedom of thought, expression, and the press; eradication of religious authority from the legislative process and education; and full separation of church and state".  (2) the moderate enlightenment… like those in the writings of Descartes, John Locke, Isaac Newton or Christian Wolff, expressed some support for critical review and renewal of the old modes of thought, but in other parts sought reform and accommodation with the old systems of power and faith.
The Americans closely followed English and Scottish political ideas, as well as some French thinkers such as Montesquieu.   During the Enlightenment there was a great emphasis upon liberty, democracy, republicanism and religious tolerance. Attempts to reconcile science and religion resulted in a widespread rejection of prophecy, miracle and revealed religion - especially by Thomas Paine in "The Age of Reason" and by Thomas Jefferson in his short Jefferson Bible - from which all supernatural aspects were removed.  The Enlightenment comprised "many different paths, varying in time and geography, to the common goals of progress, of tolerance, and the removal of abuses in Church and state."

In light of this, it is important to understand that:
1) “religious freedom” is not always the same as the protection of the ’exercise’ of religious practice(s).  The first implies the freedom to allow any practice whatsoever, even if it is harmful to other people, while the second implies the protection of religious practice both to individuals and groups as long as those practices are kept separate from the conduct of government.
2) the Congress, as is true so often lately, is not doing its job of seeing to it that the protection of the ’exercise’ or practice of religion is kept within a wider context and that is, the non-establishment of religious practice of one denomination or religion over others.  Or put another way, the responsibility to allow “religious freedom” within the context of non-dominance over other religions.
3)  “Freedom” is defined as the absence of “undue restrictions and an opportunity to exercise one’s rights, powers, desires, beliefs, etc.  Similarly, “liberty” is defined as something opposed to an arbitrary or despotic government; as something exempt from external control, interference, regulation, etc.”     There is also contained within “freedom” the implication of having the power to determine ones’ or its own action(s); the condition of the will as the volitional instigator of human actions; thus, a facility of action or movement.

Freedom of religious practice would therefore imply that Congress must protect citizens from an arbitrary government control or interference with their practice of religion.  But it must also protect the right or opportunity to exercise one’s religious practices.  There is room here for protection from restraint and the granting of volition or opportunity, but not for freedom of religion in the sense of a government that favors religion in public life.

My thought: The Constitution is not pro-religion just because it restrains Congress from making any laws which disallow the free practice of religion.  Religions are allowed to exist in our country without being burdened with legislation that restricts the practice thereof.  The government itself cannot thereby be seen as pro-religion, because it must take a more hands-off stance in regard to religion.  That’s about all the “practice clause” does.  The “establishment clause” goes quite a bit further by putting a sizeable restriction on Congress’s ability to establish any religion as a state religion.  Subsequent SCOTUS rulings have clarified that to mean that Congress may not even pass laws that support or inculcate particular religious beliefs or practices within the public domain.  Thus, on both counts, the Congress or government must not take sides in regard to religion or religious practices.  It is not meant to be either pro-religion or anti-religion, but ’tolerant’ of a particular religion or practice, allowing the unfettered practice of religion as long as it does not infringe on the rights of others in the public domain.

In the present case of whether or not the owners of a business have the right to restrict the legally-based offering of contraceptive devices, within the content of a health plan, to their employees rubs up against these definitions, and raises some interesting questions: 
--Can those who believe in opposing contraception on the basis of belief in natural law, be allowed to force their religious beliefs upon others?
--Is this a religious practice, or a politically motivated scheme to bring about the acceptance of a religious belief by the government and the citizenry, thus supporting the establishment of one or more denomination’s religious “practice” or belief to the detriment of any other?
--Is the granting of exemptions from certain laws to certain denominations or groups, because of their religious beliefs, a legitimate procedure, or is it simply an excuse for getting around the establishment clause of the Constitution?  In other words, are Congress, the POTUS and the SCOTUS all involved in protecting certain tenets of certain denominations by exemptions rather than treating all equally (14th Amendment)?
--Is the “practice clause” referring to an individual right or to a right that is only applicable to a group that practices certain habitual, repetitive and customary rituals?
--Are we to believe that we have real ’non-establishment’ when we have Catholic Bishops and some evangelical preachers trying to dictate restrictions on abortions and the use of contraceptives? 
--Are we really protecting ourselves from an establishment of a state religion when we allow Christian symbols and stories to dominate our entire culture at Christmas time? 
--Can we say we are following the Constitution when certain states are allowed to dictate a curriculum in public schools that includes an interpretation of creation in other than scientific terms, by the use of religious myths?  What might be acceptable in terms of curriculum would be the teaching of a variety of mythical religious beliefs about creation, the Flood, the Garden of Eden, man’s place in the world, etc., as a means of comparing scientific with mythical explanations; a sort of comparative study of religious myths and scientific hypotheses or theories.  The one caveat would be that those myths ought to be widespread and not just Christian myths.  For instance, the Gilgamesh epic of the ancient Middle East is equally religious in terms of its mythical explanations, but is rarely taught in the schools that favor Creationism.

One thing that must be said is that the agreement of “all faiths” with a particular religious practice or action or belief is not tantamount to non-establishment of religion.  Why? Because the very act of an ecumenical prayer or ecumenical curriculum, or display of an acceptable common religious symbol in a public domain is equivalent to the establishment of a particular form of common-denominator religion and cannot be tolerated by citizens who do not agree with religious beliefs or practice.  Government must be particularly conscious of, and cautious about, any religious practice that is rendered non-denominational or ecumenical or non-offensive to all religions  (most likely, to those that just happen to be represented) and is touted as somehow acceptable as non-religious.  This is one very good reason why we must have the doctrine of “separation of church and state” to guide us.  We must because every religious practice or belief must be examined in depth when it is brought into the public arena in an attempt to make our government more religious, or the citizens of this country more devout.

A secular state, envisioned by the Enlightenment Deists who wrote much of our Constitution, is in danger of being consumed and swallowed whole by those who still believe that government should be Christian, or totally informed by Christian values or beliefs.  The idea that we are a “Christian nation” is abhorrent to many of our citizens, and reminds us too much of the state-supported religions of the Middle East.  We must be a nation dedicated to the non-establishment, or priority acclaim, of any one religion or group or belief system.  We must be a nation that protects opportunities for religious denominations and groups to worship, believe, and practice in their own way without interference by the government, but without allowing those same entities to think they have the freedom to impose their beliefs and practices on others.  The ideal situation would be for every religious and non-religious person and group to practice tolerance of others and to keep their own practices within the bounds of their own groups.  For example, if YOU don’t believe in the use of contraception, or in abortion for any reason, then live that out in your own life, but don’t try to force that belief on others.  Let the believers , the devotees, practice in their own sphere and not attempt to force their practices upon others through government entities or structures.  Religious liberty is most often threatened when religious adherents believe that it is their “sacred duty” to impose or evangelize or “educate” other people who do not share their beliefs or their practices.

We cannot allow the use of religious tenets and practices by religious devotees of any one faith or group to undermine our secular religion-neutral government.  It has gone too far toward an establishment of religion when the tenets or practices of any one or more religious groups can be the determining factor in legislating for the entire population.  Opposition to the law-of-the-land regarding abortion and contraception, along with support of prayer in public schools, prayer in Congress, prayer at public gatherings sponsored by government-funded entities, teaching of creationism in public school textbooks, displaying the Ten Commandments in courtrooms or on public buildings, are all examples of the slippery slope toward having an established religion supported by government. 

If the Supreme Court rules in favor of “Hobby Lobby” and supports them in their quest to undermine the perfectly legal provisions of the ACA in regard to contraception, then SCOTUS will have ruled in favor of an unfettered religious freedom for certain groups that undermines the establishment clause of the First Amendment, and which turns a law that shows no religious favoritism into one that does.  The Roman Catholic Church (and its evangelical imitators) have no right to establish their beliefs about contraception as the law of the land in terms of healthcare.  Their use of state legislatures to limit the number of weeks at which abortions may be performed under qualifying circumstances is another attempt to undermine the establishment clause as being contrary to their stated goal to overturn Roe vs. Wade and to establish their own tenets as the only ones acceptable in our society.

While we may have developed within the historic context of Judeo-Christian tradition, we are not a Christian nation, but a diverse nation of many beliefs, of many religions, and many religious, and non-religious, practices.  We cannot allow any of them to dictate our government’s stance on equal protection of the law, or on non-establishment or the non-prioritizing of religious beliefs and practices.  Being a secular government does not make us a nation opposed to religion; it makes us a nation protective of all religions, but un-devoted to any one form of belief, practice, or prayer.